Citation Nr: 0707169
Decision Date: 03/12/07 Archive Date: 03/20/07
DOCKET NO. 04-12 059 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder, to include post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Simone C. Krembs, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1968 to December
1969.
This matter comes before the Board of Veterans' Appeals
(Board) from a December 2001 rating decision of a Department
of Veterans Affairs (VA) Regional Office (RO) that denied
service connection for an acquired psychiatric disorder, to
include PTSD. In September 2006, the veteran testified
before the Board at a hearing that was held via
videoconference from Albany, New York.
The appeal is REMANDED to the RO via the Appeals Management
Center in Washington, D.C.
REMAND
Additional development is needed prior to further disposition
of the claim.
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R.
§ 4.125(a) (i.e., under the criteria of DSM-IV); a link,
established by medical evidence, between current symptoms and
an in-service stressor; and credible supporting evidence that
the claimed in-service stressor occurred. If the evidence
establishes that the veteran engaged in combat with the enemy
and the claimed stressor is related to that combat, in the
absence of clear and convincing evidence to the contrary, and
provided the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. 38 C.F.R.
§ 3.304(f) (2006).
When the evidence does not establish that a veteran is a
combat veteran, his assertions of service stressors are not
sufficient to establish the occurrence of such events.
Rather, his alleged service stressors must be established by
official service record or other credible supporting
evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16
Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998);
Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6
Vet. App. 283 (1994).
The veteran contends that he has PTSD related to alleged
service stressors in Vietnam, warranting service connection
PTSD. See 38 C.F.R. § 3.304(f). According to service
personnel records, the veteran served in Vietnam for
approximately 12 months. His military occupational specialty
is listed as administrative specialist, or clerk. Service
personnel records show that he was awarded decorations
indicating service in Vietnam, but not evidencing combat.
His service medical records are negative for a psychiatric
disorder.
Post-service medical records show that the veteran has
received psychiatric treatment, and that he diagnosed with
PTSD by a private physician in September 1999 and by VA in
March 2000.
The veteran's claim has been denied on the basis that his
alleged stressors have not been verified.
In September 2006 testimony before the Board, the veteran
reported Vietnam service duties involving acting as a courier
of classified information via airplane and helicopter. Prior
to his separation from service, the veteran trained his
replacement. Shortly after having trained his replacement,
the replacement, a sergeant major, and a helicopter pilot
were involved in a crash in which all three men on board were
killed. The veteran additionally reported a stressor in
which the veteran drove over a civilian, who was on a small
motorcycle. This incident, which the veteran approximated as
occurring in April or May 1969, happened on the base at which
the veteran was stationed. He reportedly was required to
sign an affidavit following the accident.
As the veteran did not engage in combat, the alleged
stressors must be verified by official service records or
other credible supporting evidence. 38 C.F.R. § 3.304(f);
Cohen v. Brown, 10 Vet. App. 128 (1997). Because the veteran
has provided detailed evidence sufficient to verify stressors
through the United States Army & Joint Services Records
Research Center (JSRRC), and no attempt to verify has yet
been made, the RO should attempt to verify the listed
stressors through JSRRC.
Additionally, the veteran testified in September 2006 that he
was receiving private psychiatric treatment on a monthly
basis from Drs. "Marcus" and Ira Zibler. Because the
latest private psychiatric treatment records are dated in
September 1999, and because VA is on notice that there are
additional records that may be applicable to the veteran's
claim, these records should be obtained. If possible, the
veteran himself is asked to obtain these records and submit
them to the VA in order to expedite the process.
Accordingly, the case is REMANDED for the following actions:
1. After obtaining the necessary
authorization from the veteran, obtain
and associate with the claims file
private medical records pertaining to
treatment for psychiatric disorders,
dated from September 1999 to the
present. Medical records should
specifically be requested from a
"Dr. Marcus" and from Ira Zibler, M.D.
All attempts to secure these records
must be documented in the claims
folder.
2. Forward the veteran's statements of
alleged PTSD stressors, as well as
copies of his service personnel records
and any other relevant evidence, to the
United States Army & Joint Services
Records Research Center (JSRRC).
Request that JSRRC attempt to verify
the alleged stressors. Specific
requests should be made for casualties
in the veteran's unit as a result of a
helicopter accident dated in November
or December 1969, and the April or May
1969 base accident in which a civilian
was killed after being run over with a
truck. If more detailed information is
needed for such research, the veteran
should be given the opportunity to
provide it.
3. If a stressor is verified, schedule
the veteran for a VA examination to
determine whether the veteran meets the
criteria found is DSM-IV for a
diagnosis of PTSD and whether any PTSD
is related to a confirmed stressor in
service.
4. Then, readjudicate the claim for
service connection for an acquired
psychiatric disorder, to include PTSD.
If the action remains adverse to the
veteran, provide the veteran and any
representative with a supplemental
statement of the case and allow the
appellant an appropriate opportunity to
respond thereto. Thereafter, return
the case to the Board.
The appellant has the right to submit additional evidence and
argument on the matter the Board is remanding. Kutscherousky
v. West, 12 Vet. App. 369 (1999). This claim must be
afforded expeditious treatment. The law requires that all
claims that are remanded by the Board by the United States
Court of Appeals for Veterans Claims for additional
development or other appropriate action must be handled in an
expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West
Supp. 2006).
_________________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).